3. Electronic Theses and Dissertations (ETDs) - All submissions
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Item Fighting impunity through prosecution of international crimes in Africa(2019) Asaala, Evelyne OwiyeOver the years, it has become increasingly difficult to sustain any discourse on the challenges facing Africa without mentioning impunity for atrocious acts. Impunity has habitually characterised political instability on the continent and often led to civil unrest. Impunity continues to expose African civilians to horrendous human rights violations, such as war crimes, genocide, crimes against humanity, torture, rape, extra-judicial executions, corruption and autocratic rule. Arguably, in the last few decades, almost all African countries have experienced conflicts that resulted in serious human rights violations. Unfortunately, these atrocities were met in the past with either a total lack of accountability or only half-hearted measures. This necessitated a regional response in line with principles of the African Union (AU) that, inter alia, underscore good governance, respect for human rights, and accountability for past crimes. Several initiatives to root out impunity were introduced both at the regional and international level. The initiatives at the international level entailed setting up a number of ad hoc tribunals on the African continent to undertake prosecution. The eventual adoption and entry into force of the Rome Statute establishing the International Criminal Court (ICC) raised considerable hope, with some commentators describing it as a ‘Grotian’ moment for international law. At its inception in 1998, the ICC was seen as a permanent solution to the problem of accountability for past crimes. A majority of African states took part in the negotiations, adoption, signature and ratification of the Rome Statute. In 2003, the Democratic Republic of Congo (DRC) was the first state to trigger the ICC’s jurisdiction through the self-referral mechanism. Subsequent efforts by African states through such ‘self-referrals’ ensued. In sum, in addition to DRC, Uganda, Central African Republic (CAR) and Mali have referred situations in their countries to the ICC. Unfortunately, this euphoria has come to naught. Enthusiasm about the ICC and the promise it held as a solution to impunity seems to have faded away, with much criticism directed to it amidst AU calls for an African solution to Africa’s problem of impunity. The Gambia, Burundi and South Africa submitted notices to withdraw from the ICC. Although the Gambian notice has been withdrawn and a South African court invalidated the South African withdrawal, as it was procedurally irrational (resulting in the government revoking its withdrawal notice), there are impending threats that Namibia, Kenya and Uganda as well as South Africa (should it meet the relevant domestic procedural requirements) could seek to withdraw. This study identifies two central themes that, arguably, have informed the AU’s discontent about the ICC. They are: the perceived bias of the ICC against Africa; and the divergent opinions in the ‘peace versus justice’ debate. These are covered in chapters two and three of this thesis, respectively. Chapters four and five interrogate African approaches to their concerns against the ICC in addressing the problem of impunity. While chapter four discusses the criminal mandate of the African Court of Justice and Human Rights, chapter five considers traditional African approaches and truth and reconciliation commissions. Chapter six then concludes the study. This dissertation seeks to answer four research questions: What are Africa’s concerns about the prosecution of international crimes at the ICC? On what bases does Africa have these concerns? Do African approaches add value to the fight against impunity in Africa and how can one strengthen them? Is a regional criminal mechanism - which takes into consideration African approaches or perspectives – the solution to fighting impunity in Africa?Item An exploration of corporate criminal liability in international law for aiding and abetting international crimes in Africa(2015) Ongeso, John PaulAt present, international law has not succeeded in establishing a way through which multinational corporations (MNCs) can be regulated effectively and compelled to adhere to international human rights standards. This poses a problem for states that rely heavily on the investment of MNCs for economic development. African states in particular compete for investment by reducing their regulatory mechanisms in order to attract MNCs. This allows MNCs to engage in practices that violate human rights and contribute to the commission of international crimes. This thesis seeks to address this problem by exploring how MNCs can be held criminally liable in international law if they are involved in serious human rights abuses and international crimes. In the twentieth century, two seminal events in international criminal justice illustrate that there was evidence that the notion of holding multinational corporations criminally liable was possible. These include i) the jurisprudence of the Allied Tribunals at Nuremberg after World War II which contemplated the possibility of corporate criminal liability and ii) the negotiations during the establishment of the International Criminal Court (ICC) in the 1990s which considered proposals for the extension of criminal liability to corporations. At the national level, many states provide for corporate criminal liability. This is often derived from the establishment of criminal liability of an official of the corporation. The United Kingdom and Australia, however, have successfully set out how a corporation may itself be found criminally liable without the need to derive its criminal liability from an official. These developments show that the idea of holding MNCs criminally liable, either through a derivative or non-derivative process, is possible and achievable. In particular, this thesis proposes that MNCs can be found criminally liable for aiding and abetting international crimes under Article 25(3)(c) of the Statute of the ICC. In proposing a way through which this can be achieved, this thesis does two things: i) it extracts principles of non-derivative criminal liability established in the United Kingdom and Australia and ii) it develops a theory of corporate criminal liability for aiding and abetting international crimes that incorporates these principles. This theory underpins the proposed new approach to the establishment of corporate criminal liability for aiding and abetting in the ICC.